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Non-reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.89 of 2009

State of Andhra Pradesh       …. Appellant

Versus

Kesavapatnam China Swamy  …. Respondent

J U D G M E N T  

Uday Umesh Lalit, J.

1. This appeal by Special Leave challenges the judgment and order dated

25.04.2006 of the High Court of Judicature of Andhra Pradesh at Hyderabad in

Criminal  Appeal  No.27  of  2001  setting  aside  the  judgment  and  order  of

conviction  dated  29.12.2000  of  the  Special  Judge  for  SPE  & ACB Cases,

Vijayawada in CC No.4 of 1996.

2.  One P. Ramakrishna Rao i.e. PW1 wanted to start a  Kirana and General

Stores  at  Gudivada  and  had  submitted  an  application  on  22.05.1995  with

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necessary enclosures in the office of the Deputy Commercial Tax Officer No.1,

Gudivada  seeking  issuance  of  registration  certificate.   The  application  was

forwarded to the respondent who, as Assistant Commercial Tax Officer No.1,

Gudivada,  District  Krishna,  was  competent  to  issue  registration  certificate

under the Sales Tax Act.  In this connection PW1 met the respondent in his

office  on  16.06.1995  and  requested  him to  issue  registration  certificate,  at

which time the respondent allegedly demanded Rs.1000/- as bribe.   PW1 then

went along with PW2 K.B. Narayana to meet the respondent on 22.06.1995

and requested for issuance of the certificate.  On that day PW1 also furnished

additional National Savings Bond in the sum of Rs.500/- as per directions of

the respondent.  The respondent after accepting the same reiterated his demand.

It is alleged that on 23.06.1995 PWs1 and 2 again went to the office of the

respondent and repeated the request for issuance of registration certificate.  The

respondent allegedly informed PW1 that the registration certificate was ready

and would be delivered upon payment of bribe of Rs.1000/- as demanded.  The

respondent also instructed PW1 to produce the Day Book duly written upto

24.06.1995 for affixing his signature.  When PW1 expressed his inability, the

bribe amount was reduced to Rs.500/-.  PW1 along with PW2 thereafter went

to  the  office  of  the  respondent  on  01.07.1995  and  made  the  request  for

registration  certificate.   The  respondent  allegedly  repeated  his  demand and

PW1 reluctantly agreed to pay the amount.

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3. At this stage PW1 presented a report Ext.P1 on 01.07.1995 at 4.00 PM in

the office of the Anti Corruption Bureau to PW8 N. Prasad, District Inspector

ACB, Vijayawada, who in turn submitted it to PW9 DVSS Murthy, DSP, ACB,

Vijaywada.  PW9 registered the same as FIR and decided to lay a trap.  On

05.07.1995 PW9 conducted pre-trap proceedings (Ext P23) in the presence of

PWs1, 2 and the mediators during which time five currency notes of Rs.100/-

each produced by PW1 were treated with Phenolphthalein powder and kept in

the empty shirt pocket of PW1.   

4. Thereafter on the same day at about 12.25 PM PW1 along with PW2 met

the respondent in his office and upon being asked by the respondent,  PW1

informed the respondent that he had brought the bribe amount of Rs.500/-.  On

the  instructions  of  the  respondent,  PW4  Attender  E.  Kanakam  affixed  the

rubber stamp on the registration certificate and handed over the same to the

respondent, who then instructed PW4 to go away.  Thereafter PW1 offered to

give  Rs.500/-as  demanded  earlier.  The  respondent  asked  PW1 to  give  him

Rs.400/-  only  which  amount  was  so  given  by  PW1  and  received  by  the

respondent with his left hand.  The respondent kept the amount on the papers

lying on his office table.  The respondent then called one K. Viswanadham,

Junior Assistant dealing with registration work and on his directions PW1 paid

the balance amount of Rs.100/- to said  Viswanadham, who received the same

and went back to his seat.  The respondent thereafter took the Day Book (Ext.

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P9) from PW1 and affixed his signature putting the date as 23.06.1995 and

returned  the  same  to  PW1.    The  registration  certificate  Ext.P8  was  then

delivered by the respondent to PW1

5. PW1 thereafter came out of the office leaving PW2 inside the office who

kept talking with the respondent.  Requisite signal having been given by PW1,

PW9 with the raiding party entered the office of the respondent.  He conducted

appropriate  test  on  the  fingers  of  the  respondent  and  Viswanadham which

turned positive.  The amount of Rs.400/- was recovered from the office table of

the  respondent  and  Rs.100/-  from  the  almirah  in  front  of  the  seat  of

Viswanadham.  The numbers of the currency notes were verified and tallied by

the mediators and the post trap proceedings (Ext. P24) were reduced to writing

by the mediators.   

6. After  completing  investigation  and  obtaining  appropriate  sanction,

charge sheet was filed against the respondent and Viswanadham and charges

under Sections 7, 13(2) read with 13(1)(d)(ii) of the Prevention of Corruption

Act, 1988 (hereinafter referred to as the Act) were famed against them.  In

support of its case the prosecution examined ten witnesses and marked thirty

six  documents.   In  defence,  the  respondent  and  Viswanadham  filed  their

statements in writing.  The respondent stated that he had never demanded and

received the bribe from PW1 and that the trap proceedings dated 05.07.1995

were stage managed at the instance of one Hanumantha Rao, a tax consultant.

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It was submitted that PW1 had clandestinely put currency notes on the papers

lying on his table and when PW9 entered the office he directed the respondent

to pick up those notes and to give them to one of the officials present with him

and that he had accordingly picked up said notes with his left hand.  It was

submitted that the registration certificate of PW1 was approved by him as early

as on 24.06.1995 and that PW1 was asked to collect the registration certificate

immediately  and that  nothing relating to  PW1 was pending with  him after

24.06.1995.  Viswanadham in his written statement stated that on the relevant

date  PW1  met  him  and  informed  that  the  respondent  had  sent  PW1  with

instructions to give Rs.100/- to him and therefore he had accepted the same and

kept in the open almirah.  Further he had taken the amount as he was under the

impression that the respondent had sent the amount for the purposes of buying

some  provisions  or  other  articles,  which  he  normally  used  to  do  for  the

respondent.

7. After considering the material on record and rival submissions, the trial

court rendered following findings:

(1) No reliable evidence was produced on record nor anything was elicited in cross-examination of the witnesses which could substantiate the theory that the trap proceedings were stage managed at the instance of Hanumantha Rao.

(2) The  evidence  of  PW1  and  PW2  as  regards  the  demand  and acceptance was completely trustworthy and reliable.

(3) The  evidence  of  PW1 as  corroborated  by  that  of  PW2 proved beyond  reasonable  doubt  that  the  respondent  had  demanded  bribe

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amount of Rs.1000/- which was then reduced to Rs.500/- for issuance of registration  certificate  and  that  on  05.07.1995  the  respondent  in  the presence of PW2 had demanded and received Rs.400/- from PW1 and thereafter delivered the registration certificate Ext.P8 after getting the relevant endorsement made by PW4.   

(4) PW4  in  his  examination-in-chief  deposed  that  when  the endorsement  of  delivery  of  registration  certificate  was  made  on 05.07.1995, PWs 1 and 2 were present and on the instructions of the respondent PW4 had left his office.

(5) The evidence of PW1 as corroborated by that of PW2 proved that registration certificate Ext.P8 though prepared on 24.06.1996 was not delivered  to PW1.

(6)      The  evidence  of  PW9  as  corroborated  by  that  of  PW7, Government  official who had acted as panch, proved that the hands of the respondent were first subjected to test which yielded positive result and only thereafter on the instructions of PW9, PW7 had picked up the currency  notes  from the  table  top.   Thus  there  was  no  force  in  the contention  of  the  respondent  that  PW9  had  made  him  pick  up  the currency notes.   

With these findings the trial court held that the case was proved beyond

any doubt as regards the respondent.  It however found that Viswanadham had

not at any point of time demanded any bribe and that the case against him was

not proved at all.  Viswanadham was, therefore, acquitted of all the charges.

The  respondent  was  convicted  under  Sections  7  and  13(1)(d)(ii)  read  with

Section 13(2) of the Act and sentenced on each of the aforesaid two counts to

suffer simple imprisonment for one year and to pay a fine of Rs.1000/-,  in

default whereof to undergo further simple imprisonment for four months  .

8. The respondent appealed in the High Court.   It  was submitted on his

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behalf that Phenolphthalein powder was not only applied to the tainted notes

but also to the Day Book, that day Day Book was not subjected to any test by

PW9 and therefore there was definitely a doubt about the veracity of the trap

proceedings.  It was further submitted that normal practice is to receive money

with right hand whereas the respondent had allegedly received the amount with

his left hand, which further created doubt.  The High Court observed as under:

“So after carefully going through the evidence, I entertain a doubt whether the day book is free from phenolphthalein powder and also there is a doubt whether A.1 received the amount with his left hand when the normal practice is to receive with his left hand. The explanation of A.1 is that while he was writing a book, the cash was kept on the table.  To be more probable, there was no phenolphthalein powder struck to the right hand of the accused. At the post  trap proceedings also, the D.S.P. did not make any attempt to conduct the sodium carbonate test on the daybook.  It is also creating a doubt whether the phenolphthalein powder struck to the left hand fingers is that of the day book or of the tainted notes.  Therefore, I am inclined to give the benefit of doubt to the accused.”

With this view the High Court allowed the appeal and set aside the order

of conviction and sentence recorded by the trial court.

   9. The State being aggrieved has preferred the instant  appeal  by special

leave.  Mr. G. Pramod Kumar, learned Advocate appearing for the appellant

submitted that the theory as regards the Day Book was not even spelt out at the

initial stage and if it was so done, it was possible for the investigating officer to

subject the Day Book for appropriate test.  The other reason which weighed

with the High Court in his submission was purely in the realm of conjectures.

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It was further submitted that none of the findings as recorded by the trial court

was even adverted to  and found to be incorrect.   Ms.  T. Anamika,  learned

Advocate  appearing  for  the  respondent  contended  that  the  entire  trap

proceedings were stage managed at the instance of Hanumantha Rao and that

the High Court was completely justified in entertaining doubts as expressed by

it.

10. We have gone through the record and considered the submissions.  Right

since the beginning the contention of  the respondent  had been that  he was

asked to pick up the currency notes by PW9 and that is how his fingers got

smeared.  That part of the case was elaborately considered by the trial court

and it rendered a finding that his hands were subjected to test first and only

thereafter PW7 had picked up the currency notes which were lying on the table

on the instructions of PW9.  It was never the contention that the Day Book

itself had traces of Phenolphthalein powder and by handling said Day Book his

fingers had got smeared.  If it was so contended the investigating officer could

immediately  have  subjected  the  Day  Book  itself  to  appropriate  test.   The

evidence on record shows that the respondent accepted Rs.400/- only out of

Rs.500/- offered by PW 1 as per demand and instructed that Rs.100/- be given

to Viswanadham, which would negate the theory of any accidental touching of

tainted  notes.  This  part  of  the  case  and  aspects  concerning  demand  and

acceptance completely stood proved. The contention, therefore, deserves to be

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rejected.  The other contention that a person would not normally receive money

by his left hand, again has no basis and is purely in the realm of surmises and

conjectures.  The High Court did not in any way deal with the reasons and

findings recorded by the trial court while finding the respondent guilty of the

offences  in  question.   The  assessment  and  conclusions  of  the  High  Court

cannot even be termed as a possible view in the matter.

11. We,  therefore,  set  aside  the  judgment  and  order  passed  by  the  High

Court.  The appeal is allowed and the judgment of conviction and sentence as

recorded by the trial court against the respondent is restored.   The respondent

shall be taken into custody forthwith to undergo the sentence as awarded.

……………………….J                    (Pinaki Chandra Ghose)

……………………….J           (Uday Umesh Lalit)

New Delhi, May 06, 2015

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ITEM NO.1B               COURT NO.11               SECTION II (for Judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  89/2009 STATE OF ANDHRA PRADESH                            Appellant(s)                                 VERSUS KESAVAPATNAM CHINA SWAMY                           Respondent(s)

Date : 06/05/2015 This appeal was called on for pronouncement of  judgment today.

For Appellant(s) Mr. Guntur Pramod Kumar, Adv. Mr. Guntur Prabhakar, Adv.

                 Mr. D. Mahesh Babu, Adv.                       For Respondent(s) Ms. T. Anamika, Adv.                         

Hon'ble  Mr.  Justice  Uday  Umesh  Lalit  pronounced  the non-reportable  judgment  of  the  Bench  comprising  Hon'ble  Mr. Justice Pinaki Chandra Ghose and His Lordship.  

The  appeal  is  allowed  and  the  judgment  of  conviction  and sentence as recorded by the trial court against the respondent is restored.   The respondent shall be taken into custody forthwith to  undergo  the  sentence  as  awarded  in  terms  of  the  signed non-reportable judgment.

(R.NATARAJAN)        (SNEH LATA SHARMA)  Court Master       Court Master

(Signed non-reportable judgment is placed on the file)